dismissed EB-1C Case: Computer Science

U.S. Citizenship 
and Immigration 
Services 
MATTER OF A- INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JAN. 12,2017 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
', 
The Petitioner, a computer software and hardware developer, seeks to permanently employ the 
Beneficiary as a software engineering manager, automation, under the first preference immigrant 
classification for multinational executives or managers. See Immigration and Nationality Act (the 
Act) section 203(b)(l)(C), 8 U.S.C. § 1153(b)(1)(C). This classification allows a U.S. employer to 
permanently transfer a qualified foreign employee to the United States to work in an executive or 
managerial capacity. 
The Director, Nebraska Service Center, denied the petition, concluding that the evidence of record 
did not establish that: (1) the Petitioner has a qualifying relationship with the Beneficiary's foreign 
employer; and (2) the Beneficiary has been employed abroad in a managerial or executive capacity. 
The matter is now before us on appeal. In its appeal, the Petitioner asserts that the Director did not 
fully consider the evidence; drew incorrect conclusions from a prior tiling by the Petitioner; and 
imposed too high a standard of proof. The Petitioner submits a legal brief and copies of 
documentation that had accompanied a previously filed immigrant petition. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
Section 203(b) of the Act states in pertinent part: 
(1) Priority Workers.- Visas shall first be made available ... to qualified immigrants who 
are aliens ~escribed in any of the following subparagraphs (A) through (C): 
(C) Certain multinational executives and managers.· An alien is described in this 
subparagraph if the alien, in the 3 years preceding the time of the alien's 
application for classification and admission into the United States under this 
subparagraph, has been employed for at least 1 year by a firm or corporation or 
other legal entity or an affiliate or subsidiary thereof and the alien seeks to 
Matter of A- Inc. 
enter the United States in order to continue to render services to the same 
employer or to a subsidiary or affiliate thereof in a capacity that is managerial 
or executive. 
A United States employer may file Form l-140, Immigrant Petition for Alien Worker, to classify a 
beneficiary under section 203(b )(1 )(C) of the Act as a multinational executive or manager. A labor 
certification is not required for this classification. 
The regulation at 8 C.F.R. § 204.5(j)(3) states: 
(3) Initial evidence-
(i) Required evidence. A petition for a multinational executive or manager 
must be accompanied by a statement from an authorized official of the 
petitioning United States employer which demonstrates that: 
(A) If the alien is outside the United States, in the three years immediately 
preceding the filing of the petition the alien has been employed outside 
the United States for at least one year in a managerial or executive 
capacity by a firm or corporation, or other legal entity, or by an affiliate 
or subsidiary of such a firm or corporation or other legal entity; or 
(B) If the alien is already in the United States working for the same 
employer or a subsidiary or affiliate of the firm or corporation, or other 
legal entity by which the alien was employed overseas, in the three years 
preceding entry as a nonimmigrant, the alien was employed by the entity 
abroad for at least one year in a managerial or executive capacity; 
(C) The prospective employer in the United States is the same employer or a 
subsidiary or affiliate of the tirm or corporation or other legal entity by 
which the alien was employed overseas; and 
(D) The prospective United States employer has been doing business for at 
least one year. 
II. QUALIFYING RELATIONSHIP 
The Director denied the petition based, in part, on a finding that the Petitioner did not establish that it 
has a qualifying relationship with the Beneficiary's foreign employer. 
To establish a "qualifying relationship" under the Act and the regulations, a petitioner must show 
that the beneficiary's foreign employer and the proposed U.S. employer are the same employer (i.e. 
2 
(b)(6)
Matter of A- Inc. 
a U.S. entity with a foreign office) or related as a "parent and subsidiary" 'or as "affiliates." See 
generally section 203(b)(l)(C) of the Act; 8 C.F.R. § 204.5U)(3)(i)(C). 
When the Petitioner filed the Form 1-140 petition on September 27,2013, the Petitioner stated that, 
before entering the United States, the Beneficiary worked with the Petitioner's wholly-owned 
subsidiary in Ireland, "as an employee of Throughout this proceeding , the 
Petitioner has acknowledged that is not an affiliate or subsidiary of the petitioning 
company. The Petitioner asserts that because the Beneficiary worked exclusively with its subsidiary 
in Ireland, under the direction of its employees, he was therefore the subsidiary's employee for 
purposes of this proceeding. 
All parties agree that there is a qualifying relationship between the Petitioner and the Petitioner's 
subsidiary in Ireland; and that there is no qualifying relationship between the Petitioner and 
Therefore , the threshold issue here is the identity of the Beneficiary's overseas 
employer. 
As indicated above, section 203(b )(I )(C) of the Act requires a given beneficiary to have been 
"employed" abroad and to be coming to the United States for the purpose of rendering services to 
the same or a related "employer" in the United States in a managerial or executive capacity. Section 
101 (a)( 44) of the Act defines both managerial and executive capacity as an assignment within an 
organization in which an "employee" performs certain enumerated qualifying duties. The Supreme 
Court has determined that where the applicable federal law does not define "employee," the term 
should be construed as "intend[ing] to describe the conventional master-servant relationship as 
understood by common-law agency doctrine ." Nationwide lvfut. Ins. Co. v. Darden, 503 U.S. 318 , 
322-323 (1992) ("Darden") (quoting Comfy. for Creative Non-Violence v. Reid, 490 U.S. 730, 739-
40 (1989) ("C. C.N. V ")). 
The Court stated: 
In determining whether a hired party is an employee under the general common law 
of agency, we consider the hiring party's right to control the manner and means by 
which the product is accomplished. Among the other factors relevant to this inquiry 
are the skill required; the source of the instrumentalities and tools ; the location of the 
work; the duration of the relationship between the parties; whether the hiring party 
has the right to assign additional projects to the hired party; the extent of the hired 
party's discretion over when and how long to work; the method of payment; the hired 
party's role in hiring and paying assistants; whether the work is pari of the regular 
business of the hiring party; whether the hiring party is in business; the provision of 
employee benetits; and the tax treatment of the hired party. 
Darden, 503 U.S. at 323-324 (quoting CC.N. V , 490 U.S. at 751-52). 
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(b)(6)
Matter~~ A- Inc. 
the Petitioner's manager for immigration services, initially stated that the 
Beneficiary was: 
[A]n employee of a company that [the Petitioner's subsidiary] used 
exclusively to handle localization operations in Ireland. was treated as a 
hiring company and [the Beneficiary] reported to Group 
Operations Manager of on human resource matters , approximately once a 
quarter. Compensation decisions , such as the payment of [the Beneficiary 's] bonuses , 
were made jointly by an [Petitioner ' s subsidiary] senior manager 
overseemg localization quality assurance for the European and Middle Eastern 
markets. 
The Petitioner submitted an organizational chart that included the following excerpt: 
European Localization Quality Manager, Petitioner 's subsidiary 
I 
Group Operations Manager , 
I 
The Beneficiary, Lead Localization QA Engineer, 
I 
Three Localization QA Engineers, 
The Petitioner stated that the exact personnel varied from project to project, and the chart submitted 
related to one such project as a representative example . 
In a request for evidence (RFE), the Director asked the Petitioner to establish a qualifying 
; relationship between the Petitioner and In response , the Petitioner stated that no such 
relationship exists , but that the Petitioner 's subsidiary was effectively the Beneficiary's employer 
overseas. The Petitioner submitted a new letter from who stated that the Petitioner's 
subsidiary was the Beneficiary's employer for the following reasons: 
• [The Beneficiary] performed work exclusively for [the Petitioner's subsidiary] 
during this period . 
• Compensation decisions, such as the payment of [the Beneficiary ' s] bonuses , 
were made primarily by 
• All of [the Benefici\}ry's] work was controlled by [the Petitioner ' s] managers 
based in the United States. . 
. . had the right to control the details of 
how [the Beneficiary's] job duties were to be performed. 
• [The Beneficiary] and his team performed all job duties at [the Petitioner's 
subsidiary] premises. 
• [The Beneficiary] was given an [Petitioner 's subsidiary] employee badge ... and 
given access to [the Petitioner 's subsidiary] premises. 
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Matter of A- Inc. 
• [The Beneficiary's] job performance evaluation was conducted by 
• [The Beneficiary] was required to travel to our [U.S.] headquarters on several 
occasions to meet with other members of [the Petitioner's] Interactive Media 
Group and its Localization and Release Engineering organization. 
• [The Beneficiary's] supervisors were based at [the Petitioner's U.S.] headquarters. 
The Petitioner submitted an organizational chart that largely resembles the version 
submitted 
previously, and a printout from the Petitioner's website, identifying as one of 22 "Third 
Party Localization Vendors," with a disclaimer that "under no circumstances will [the Petitioner] 
have any liability for [customers'] use of such vendors or services." 
The Petitioner cited Defensor v. 1'0eissner, 201 F.3d 384 (6th Cir. 2000), and a memorandum from 
Donald Neufeld, Associate Director for Service Center Operations, HQ70/6.2.8, AD 10-24, 
Determining Employer-Employee Relationshipf(Jr Adjudication of H-1 BPetitions. Including Third­
Party Site Placements (Jan. 8, 2010), http://ww\v.uscis.gov/lawsipolicy-mernoranda. These 
resources concern a specific definition of "United States employer" found at 8 C.F.R. 
§ 214.2(h)(4)(ii), which applies only to H-lB nonimmigrant petitions. Darden, in contrast, 
addressed instances in which the law provided no purpose-specific definition of the term 
"employer:" 
The Petitioner also cited a letter dated December 18, 1995, from Yvonne M. LaFleur, Chief of the 
Nonimmigrant Branch at the Office of Adjudications, stating: "the Service generally equates the 
rendering of service with employment for the qualifying L-1 period," and that "the power of control 
over the employee's activity, rather than salary, is the essential element in the employment 
relationship." 
The Director denied the petition, in part because "the beneficiary \vas an employee of 
rather than" the Petitioner. The Director also found that "the petitioner has not submitted 
evidence the beneficiary was a [Petitioner's subsidiary] employee abroad; it is relying only upon its 
[own] assertions." 
On appeal, the Petitioner submits copies of two reference letters from March 2009. 
signed one letter, the other, but the tvv·o letters are essentially identical. Both letters 
indicate that the Beneficiary "was employed by ' and both include the phrase "As his 
manager, I can confirm" the nature of the Beneficiary's duties. 
Applying the factors in Darden to the evidence in this matter, we find that the Petitioner has not 
established that its foreign subsidiary "employed" the Beneficiary. The Petitioner asserts that the 
Beneficiary answered primarily to manager at the Petitioner's subsidiary, which would 
relate to the hiring party's right to control the manner and means by which the product is 
accomplished. The Petitioner has not documented the nature or extent of oversight over 
the Beneficiary. The Director, in the denial notice, advised the Petitioner that the U.S. Petitioner's 
5 
(b)(6)
Matter of A- Inc. 
unsupported statements could not meet the burden of proof with respect to particulars about the 
Beneficiary's past employment in Ireland. 
In this instance, two nearly identical letters from managers at two different companies cannot suffice 
to show that the Beneficiary reported to while his interaction \Vith was 
minimal and larg~ly involved human resources issues. The Petitioner has not suppmied its central 
argument that the Petitioner ' s subsidiary , rather than had ultimate control over the 
Beneficiary's work (as distinguished from the more general observation that a company that hires a 
contractor chooses the projects on which the contractor works). While such an assertion is generally 
consistent with Darden, the Petitioner must establish that power of control. A petitioner ' s 
unsupported statements are of very limited weight and normally will be insufficient to carry its 
burden of proof. See }dafter of Soffici, 22 l&N Dec. 158, 165 (Comm ' r 1998) (citing Afatter of 
Treasure Crafi of Cal., 14 I&N Dec. 190 (Reg' l Comm'r 1972)); see also lvfatter (~(Chawath e, 25 
I&N Dec. 369, 376 (AAO 2010). The Petitioner must support its assertions with relevant, probative , 
and credible evidence . See Matter ofChawath e, 25 I&N Dec. at 376. 
The Petitioner's foreign subsidiary hired teams from to accomplish specific goals, which 
would entail some degree of communication between the management of the two companies. The 
Petitioner, however , has not shown that this arrangement was different in form or substance from the 
relationship that typically exists between a contractor and its client. 
The record also indicates that the Petitioner is doing business and that the Beneficiary worked at the 
Petitioner's subsidiary ' s location, but the record does not contain any substantial evidence relating to 
the otherDarden factors . Because the Beneficiary 's subordinates were also employees, 
we conclude that rather than the Petitioner's subsidiary , hired and paid those 
subordinates. The record 's silence on this and other points does not translate into a presumption in 
the Petitioner ' s favor. 
For the reasons explained above, the Petitioner has not established that it has a qualifying 
relationship with the entity that employed the Beneficiary during the 3 years preceding his entry into 
the United States. The Director correctly denied the petition on this basis. 
III. EMPLOYMENT ABROAD IN AMANAGERIAL OR EXECUTIVE CAPACITY 
Even if the Petitioner had overcome its burden to demonstrate that the Beneficiary was employed by 
a qualifying entity abroad , we agree \Vith the Director that it did not establish that the Beneficiary 
has been employed abroad in a manageri al capacity. The Petitioner does not claim that the 
Beneficiary had been employed in an executive capacity. Therefor e, we restrict our analysis to 
whether the Beneficiary had been employed in a managerial capacity. 
Section 101(a)(44)(A) ofthe Act, 8 U.S.C. § ll01(a)(44)(A) , defines the term "managerial capacit y" 
as "an assignment within an organization in which the employee primaril y": 
6 
Matter of A- Inc. 
(i) manages the organization, or a department, subdivision, function, or 
component ofthe organization; 
(ii) supervises and controls the work of other supervisory, professional, or 
managerial employees, or manages an essential function within the 
organization, or a department or subdivision of the organization; 
(iii) if another employee or other employees are directly supervised, has the 
authority to hire and fire or recommend those as well as other personnel 
actions (such as promotion and leave authorization), or if no other employee is 
directly supervised, functions at a senior level within the organizational 
hierarchy or with respect to the function managed; and 
(iv) exercises discretion over the day-to-day operations of the activity or function 
for which the employee has authority. A first-line supervisor is not 
considered to be acting in a managerial capacity merely by virtue of the 
supervisor's supervisory duties unless the employees supervised are 
professional. 
If staffing levels are used as a factor in determining whether an individual is acting in a managerial 
or executive capacity, U.S. Citizenship and Immigration Services (USCIS) must take into account 
the reasonable needs of the organization, in light of the overall purpose and stage of development of 
the organization. See section 10l(a)(44)(C) ofthe Act. 
If the Beneficiary is already in the United States working for the foreign employer or its subsidiary 
or affiliate, then the regulation at 8 C.F.R. § 204.5(j)(3)(i)(B) requires the Petitioner to submit a 
statement from an authorized official of the petitioning United. States employer which demonstrates 
that, in the 3 years preceding entry as a nonimmigrant, the Beneficiary was employed by the entity 
abroad for at least 1 year in a managerial or executive capacity. 
When examining the executive or managerial capacity of a given beneficiary, we \vill look first to 
the petitioner's description of the job duties. The Petitioner's description of the job duties must 
clearly describe the duties to be performed by the Beneficiary and indicate \vhether such duties are in 
a managerial or executive capacity. See 8 C.F.R. ~ 204.50)(5). 
In this case, the Petitioner asserts that the Beneficiary was employed abroad as a function manager. 
The term "function manager" applies generally when a beneficiary does not supervise or control the 
work of a subordinate staff but instead is primarily responsible for managing an "essential function" 
within the organization. See section 101 (a)( 44)(A)(ii) of the Act. The term "essential function" is 
not defined by statute or regulation. If a petitioner claims that the beneficiary is managing an 
essential function, the petitioner must furnish a written job offer that clearly describes the duties to 
be performed in managing the essential function, i.e. identify the function with specificity, articulate 
the essential nature of the function, and establish the proportion of the beneficiary's daily duties 
(b)(6)
Matter of A- Inc. 
attributed to managing the essential function. See 8 C.F.R. § 204.5(j)(5). In addition, the 
petitioner's description of the beneficiary ' s daily duties must demonstrate that the beneficiary 
manages the function rather than performs the duties related to the function. An employee who 
"primarily" performs the tasks necessary to produce a product or to provide services is not' 
considered to be "primarily" employed in a managerial or executive capacity. See sections 
10l(a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the enumerated managerial 
or executive duties) ; see also Matter of Church Scientology lnt '/, 19 l&N Dec. 593, 604 (Comm'r 
1988). 
The Beneficiary entered the United States circa March 2008; the record does not show the exact 
arrival date. In the letter submitted with the present petition , the Petitioner stated that the 
Beneficiary worked overseas as "a Lead Localization QA Engineer" who "oversaw the engineering 
team that worked on localization and quality assurance related projects for French and German 
releases." The Petitioner asserted that the Beneficiary worked in a managerial capacity, and 
"exercised wide latitude in discretionary decision-making , receiving only general supervision from 
[The Beneficiary] served as the most senior individual and held the 
managerial authorit y to make final decisions on the localization and quality assurance functions 
being carried out" at the Petitioner's subsidiary. 
The Petitioner asserted that the Beneficiary's job duties overseas included the following elements: 
• Overall project design and management , including prioritization and assignment 
of tasks and ensuring conformance to project schedules; 
• Ensuring that processes are in place to effectively manage ongoing projects; 
• Maintaining and enforcing best practices guidelines for localization , testing, 
quality assurance, and testing activities ; 
• Developing enhancements to protocols and standards with a view to streamlining 
reporting and documentation operations ; 
• Designing custom tools for use in localization and testing processes; 
• Conducting research, analysis and studies on various software quality assurance 
and localization topics and identifying opportunities to develop new or revised 
project management approaches; 
• Evaluating the work products of Quality Assurance engineers , providing training 
and mentoring as appropriate ; 
• Training Localization QA engineers on high-level problem solving and QA best 
practices; 
• Managing project and technical communications and discussions with 
... ' 
• Formulating concepts for the development of new functionalities and overall 
optimization of successive releases of techn"ology products , extending beyond 
localization and including high-level systel)'l· issues , such as software applications 
and engines used in powering [the Petitioner 's] technologies . 
8 
(b)(6)
Matter of A- Inc. 
In the RFE, the Director instructed the Petitioner to submit a letter from an authorized official of the 
Beneficiary's foreign employer, describing the Beneficiary's specific daily duties and the percentage 
of time devoted to each of those duties. The Petitioner's response included a letter containing this 
information, signed not by an official of the foreign entity but by the Petitioner's 
manager of immigration services. The list of duties reads, in part: 
20% Managing day-to-day work of project teams engaged in localization and 
quality assurance operations . [The Beneficiary] established work priorities 
and goals for his team, and provided high-level technical advice to guide their 
work ... ; 
25% Overall management and design of localization projects, including the 
coordination and execution of project plans. [The Beneficiary] developed 
project plans and monitored milestones to ensure that all related projects were 
completed on schedule. He established system concepts , organized required 
resources for projects, oversaw requirements analysis and design , reviewed 
and assigned projects , and used his managerial authority to determine project 
approaches, priorities, goals, and establish project schedules ... ; 
10% Managing the development of detailed feasibility analysis, testing and 
integration of the new localized products and functionalities with existing 
systems . .. ; 
10% Evaluating work products and processes to ensure that operations are 
structured and carried out efficiently. [The beneficiary] maintained and 
enforced best practices guidelines for localization, testing , quality assurance, 
and testing activities to ensure the quality and reliability of the end products 
... ' 
2% Developing enhancements to engineering protocols , policies , and standards 
with a view to streamlining reporting and documentation operations; 
5% Evaluating the need for custom tools for use in localization and testing 
processes , and overseeing their design. [The beneficiary] reviewed the 
engineering operations under his management to assess operational et1iciency, 
and devised ways to optimize work methods and assignments, overseeing the 
development of automated tools to control the time and cost of routine 
activities , creating system/hardware /software tuning and testing approaches , 
and specifying infrastructure requirements. 
l 0% Evaluating the work products of Quality Assurance engineers belonging to his 
project teams; 
3% Training and mentoring Localization QA engineers on high-level problem 
solving and QA best practices; 
5% Managing project and technical c::ommunications and discussions with 
... ; and 
10% Developing high-level, "macro" recommendations on technology road map 
and development for consideration by the senior management members of [the 
Petitioner's] Interactive Media Group/Localization and Release Engineering 
organization. 
9 
(b)(6)
Matter of A- Inc. 
The Petitioner asserted that the Beneficiary "managed an essential function for [the Petitioner]: 
localization and quality assurance for products for the French and 
German markets . 
. . . This function was ... essential' to [the Petitioner ' s] business performance in 
Europe." 
In denying the petition , the Director noted that, on September 22, 2010, the Petitioner had filed a 
Form 1-140 petition seeking to classify the Beneficiary as a professional or skilled worker under 
section 203(b)(3) of the Act, 8 U.S.C. § 1153(b)(3). The 2010 petition had included the March 2009 
reference letters from and discussed above. stated that the 
Beneficiary "worked in the capacity of Localisation QA Engineer," while stated that 
the Beneficiary worked "in the capacity of Software Test Engineer." The earlier petition also 
included ETA Form 9089, Application for Permanent Employment Certification, which the 
Petitioner filed on June 11, 2009. Both letters, and the ETA Form 9089, all contained the same 
description of the Beneficiary's job at the Petitioner 's subsidiary: 
Act as a lead test engineer for various multimedi-a applications . . . 
. Responsible for 
creating and updating test guidelines; writing feature validation documents; executing 
test plans, writing defects and conducting bug management. Test applications and 
perform validation oflow-level software ... that handles the ingest (capture) of HD 
& SO video, and the manipulation of media through the video pipeline which 
incl~des attributes such as correct aperture modes, gamma shifting and color 
management. 
The Form ETA 9089 indicated that had employed the Beneficiary as a "Localization QA 
' Engineer" from 2002 to 2008, and it named not as the Beneficiary ' s 
supervisor during that period. The Beneficiary signed the form, thereby attesting to its accuracy . 
In denying the petition, the Director found discrepancies regarding the Beneficiary's duties, noting 
that the job descriptions submitted with the earlier petition did not refer to any managerial duties. 
On appeal, ·the Petitioner asserts: "The USCIS has selectively pic)<ed information pertaining to the 
previous work experience froin the ETA F[or]m 9089 to point out a nonexistent discrepancy. " The 
Petitioner states that the Director "failed to raise [this issue] in an RFE" as required by 8 C.F.R. 
§ 103.2(b)(16)(i) , and that, by relying on this information from a previous petition, "the Service has 
required a much higher standard of proof." 
8 C.F.R. § 103.2(b)(l6)(i) refers to "derogatory information ... of which the ... pet1ttoner is 
unaware .... " The Petitioner cannot have been unaware of its own earlier petition (which was filed 
through the same law tirm that represents the Petitioner in the present matter). Also, the Petitioner 
has offered a response to this information , albeit on appeal rather than in response to a pre-decision 
notice. This response will receive the same consideration on appeal that it would have received in 
response to an RFE or a notice of intent to deny the petition. Furthermore , this issue was not the sole 
10 
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Matter of A- Inc. 
ground for denial, and therefore a prior notice based on this issue would not have prevented the 
denial of the petition. 
In general, when examining the executive or managerial capacity of a given position, we review the 
totality of the record, starting first with the description of the beneficiary's proposed job duties \Vith 
the petitioning entity. See 8 C.F.R. § 204.5(j)(5) . Published case law has determined that the duties 
themselves will reveal the true nature of the beneficiary's employment. Fedin Bros. Co., Ltd. v. 
Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990). We then 
consider the beneficiary's job description in the context of the petitioner's organizational structure, 
the duties of the beneficiary's subordinates , and any other relevant factors that may contribute to a 
comprehensive understanding of the beneficiary's actual duties and role within the·petitioning entity. 
In addition, while performing non-qualifying tasks necessary to produce a product or service will not 
automatically disqualify the beneficiary as long as those tasks are not the majority of the 
beneficiary's duties, the petitioner still has the burden of establishing that the beneficiary IS 
"primarily " performing managerial or executive duties. See Section 1 01(a)(44) of the Act. 
On appeal, the Petit -ioner asserts that the Director incorrectly relied on "perceived inconsistencies " 
and "a nonexistent discrepancy" between two Form 1-140 filings. Regarding the change in job title 
from "Localization QA Engineer" to "Lead Localization QA Engineer, " the Petitioner states that 
there is only a "slight variation" between two "similar titles," and that the word "lead" does appear 
in the job description on Form 9089, if not in the actual title. Specifically, the Petitioner states: "The 
job description contained on page 13 of the Form states that he 'Acted as a lead .. . . " ' The 
Petitioner , here, quotes the first four words of the phrase "[a]cted as a lead test engineer. " The same 
job description stated that one of the Beneficiary ' s duties was to "[t]est applications and perform 
validation of low-level software." To conduct such tests is to perform , not manage or oversee , an 
essential function. 
The Petitioner downplays any differences between the job descriptions written to support the present 
petition and the earlier description that and provided in 2009 to support the 
earlier petition. It is true 'that the two petitions sought different immigrant classifications for the 
Beneficiary, but both of the job descriptions concern the same position that the Beneficiary held 
from 2002 to 2008. Therefore , it is reasonable to expect the two descriptions to be essentially in 
agreement, with any differences being changes of emphasis rather than substance. 
In their March 2009 letters, and stated that the Beneficiary served "as a lead 
test engineer for various r:nultimedia applications," bu(they did not indicate that the Beneficiary 
served in a managerial capacity. Rather, they described functional activities such as "writing feature 
validation documents , executing test plans, writing defects and conducting bug management,'' and 
stated that the beneficiary "gained experience with multimedia applications . . . ; pro-video workflow 
incl[uding] capturing, editing, and processing to multi-formats; verification of video correctness in 
/ areas such as color, gamma and aperture modes ." These duties are consistent with those of an 
engineer, working directly with the Petitioner's products. The duties are also consistent with the 
11 
(b)(6)
Afatter of A- Inc. 
titles cited in the 2009 letters from 
accompanied the 201 0 petition. 
and and the other documentation that 
The Petitioner asserts that the materials submitted in support of the present petition are sufficient to 
establish eligibility by a preponderance of evidence, and that, by going outside the record, the 
Director incorrectly imposed a higher standard of proof. Regarding the "preponderance of evidence" 
standard of proof, if a petitioner submits relevant, probative, and credible evidence that leads users 
to believe that the claim is "more likely than not" or "probably" true, the petitioner has satisfied the 
standard of proof. Matter o.fChawathe, 25 I&N Dec. 369, 376 (AAO 2010), citing llv'S v. Cardoza­
Fonseca, 480 U.S. 421,431 (1987). The submission of conflicting job descriptions for the same 
position necessarily raises questions regarding the accuracy of the new job description, and we do 
not accept the assertion that the new job description would have been sufficient if USCIS had not 
seen the earlier job description. Unresolved material inconsistencies may lead us to reevaluate the 
reliability and sufficiency of other evidence submitted in support of the requested immigration 
benefit. See Matter of Ho, 19 I&N Dec. 582, 591-592 (BIA 1988). 
Furthermore, we note that the Director, in the RFE, had requested a job description "from an 
authorized official of the foreign organization," the clear implication being that such an official 
would be personally familiar with the Beneficiary's duties and, therefore, able to describe them. The 
Petitioner, in response, submitted a job description not from any authorized official of the foreign 
organization, but rather from its own manager of immigration services, based in California. All 
things being equal, a nearly-contemporaneous job description provided by someone in the 
Beneficiary's on-site management chain would tend to be more reliable than a description prepared 
several years after the fact by an official based elsewhere, who claims no expertise in the type of 
work that the Beneficiary performed. The Petitioner does not e{(plain why the job description in the 
2009 letters from . and is less reliable' than a description prepared several 
years after the fact by an individual who does not appear to have witnessed or overseen the work. 
The available evidence supports a finding that, from 2002 to 2008, the Beneficiary worked as an 
engineer, contracted through performing essential functions (with some collateral 
supervisory responsibilities) for the petitioning organization. However, the Petitioner has not 
established that the Beneficiary was employed in a managerial capacity abroad. 
IV. CONCLUSION 
The petition \Vill be denied and the appeal dismissed for the above stated reasons, with each 
considered as an independent and alternative basis for the decision. In visa petition proceedings, the 
burden of proving eligibility for the benefit sought remains with the petitioner. Section 291 of the 
Act, 8 U.S.C. § 1361. Here, that burden has not been met. 
12 
Matter of A-Inc. 
ORDER: The appeal is dismissed. 
Cite as Matter of A- Inc., ID# 96181 (AAO Jan.12, 20 17) 
13